Kaguora v Gilly Security and Investigation Limited (Appeal E226 of 2022) [2024] KEELRC 2588 (KLR)
The bottom line
#Kenya's Employment Court confirmed that employees who resign voluntarily cannot claim terminal dues like service pay, and must file accrued leave and overtime claims within 12 months.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellant was entitled to the reliefs claimed in the trial court (notice pay, service pay, accrued leave, overtime, unremitted NSSF and 12 months compensation)
- 2.Whether the claims for accrued leave and overtime were barred by limitation under Section 90 of the Employment Act, or constituted a continuing injury
- 3.Whether the judgment of the lower court should be disturbed
Key legal issues
#Whether the Appellant's claims for accrued leave and overtime were caught by limitation under Section 90 of the Employment Act
The claims were a continuing injury and time-barred as they accrued at the end of each month, requiring filing within 12 months of cessation; the claim filed on 24/1/2020 was out of time.
Section 90 of the Employment Act provides a 3-year limitation period for actions arising out of employment contracts, but only 12 months in cases of continuing injury. Following G4S Security Services, monthly-accruing benefits such as leave and overtime constitute continuing injuries. The Appellant's employment ceased on 1/1/2019 and the suit filed on 24/1/2020 exceeded the 12-month window. Section 90 is mandatory with no provision for extension of time.
Whether the Appellant was entitled to notice pay and service pay upon resignation
Notice pay failed because proper one-month notice was given; service pay was unavailable because the Appellant was an NSSF member, exempted under Section 35(6)(d) of the Employment Act.
The Appellant tendered a one-month resignation notice by letter dated 30/11/2018, so no notice pay was payable. Under Section 35(6)(d), employees registered with NSSF are exempt from service pay. The Court agreed with the trial court on both heads. As the resignation was voluntary, sections 41, 43 and 45 on termination did not apply.
Whether the Appellant was entitled to 12 months' compensation
Not entitled; the claim was not justified under any head and the Appellant resigned voluntarily without alleging coercion.
Compensation under the Employment Act attaches to unlawful termination. The Appellant resigned voluntarily for health reasons, so sections 41, 43 and 45 had no application. Moreover, the ground of unlawful termination was not pleaded. The Court found no basis for the award.
Legal principles established
#- A contractual benefit which accrues at the end of each month amounts to a continuing injury for purposes of limitation under Section 90 of the Employment Act.
- Claims for accrued leave and overtime that accrue monthly must be brought within 12 months of cessation under Section 90 of the Employment Act.
- Where an employee is registered with NSSF, they are exempt from service pay under Section 35(6)(d) of the Employment Act.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial Court (Magistrate's Court, employment dispute)
- Not stated
- Jurisdiction invoked
- First appeal from the trial court's judgment of 5th December 2022
Relief refused
#Set aside of the trial court judgment and award of terminal dues
The Court found the judgment of the lower court sound in fact and law; the claims for accrued leave and overtime were time-barred, notice pay failed as proper notice was given, service pay was excluded for NSSF members, and 12 months' compensation was unpleaded and inapplicable following a voluntary resignation.
Costs
The appeal is dismissed with costs (to the Respondent).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot the Court finds and holds that the Judgment of the lower court was sound both in fact and law and the Court finds no reason to disturb the same. The appeal is therefore dismissed with costs.
Section 90 of the Act is framed in mandatory terms and no extension of time is permissible.
a contractual benefit which accrues at the end of each month amounts to continuing injury for purposes of the law of limitation.
Having considered the evidence as presented, it is clear that this was not a case for unlawful termination or wrongful dismissal. The Appellant resigned from duty due to health reasons.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaguora v Gilly Security and Investigation Limited (Appeal E226 of 2022) [2024] KEELRC 2588 (KLR)", Case Analysis (2024). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2588/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.